Australian and International Pilots Association

[2024] FWCD 1044

[2024] FWCD 1044

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian and International Pilots Association

(R2024/66)

CHRIS ENRIGHT MELBOURNE, 4 SEPTEMBER 2024

Alteration of other rules of organisation.

1. On 15 May 2024, the Australian and International Pilots Association (AIPA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the alterations was provided on 7 August 2024.

1. AIPA seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to:

   · Rule 52 – Returning Officer & Scrutineers;

   ·     Schedule C – Transitional Provisions; and

   ·     Schedule D – Sample Election Time Frame.

1. The alterations to rule 52, Schedule C subrules 2(c) and 2(d), and Schedule D are minor and uncontroversial. They are made to renumber the subrules, clarify expression and correct typographical errors. They do not require comment beyond expressing my opinion about the matters set out in subsection 159(1) of the Act[1], which I do so below.

1. The alterations insert subrules 2(e) and 2(f) into Schedule C to provide transitional provisions for representation of new members if proposed alterations to AIPA’s eligibility rules are approved by the Commission.

1. On 6 February and 10 May 2024, AIPA lodged applications with the Commission under section 158 of the Act for consent to alter its eligibility rules. The proposed eligibility rules seek to extend AIPA’s coverage to pilots employed by National Jet Systems Pty Limited, Alliance Aviation Services Limited, related bodies corporate of Qantas Airways Limited and other entities that operate aircraft in the livery used by a Qantas Group company.

1. The relevant matters are D2024/1 and D2024/3. These two matters are currently under consideration by the tribunal of the Commission.

Transitional provisions

1. In the matter before me, proposed subrule 2(e) of Schedule C provides that if pilots employed by National Jet Systems Pty Limited or by Alliance Aviation become eligible to join AIPA:

   ·     any new members will be allocated to the Combined Small Airlines Work Group;

   ·     a Work Group will be established for their individual workplace if more than 50 pilots from the same workplace have joined AIPA within 12 months; and

   ·     the new Work Group will have a Vice-Presidential position if the number of members from that workplace make up more than 15% of the total membership of AIPA within 2 years.

1. Proposed subrule 2(f) of Schedule C provides that if a related body corporate of Qantas Airways Limited, or if an entity that operates aircraft in the livery used by a Qantas Group company employs pilots and if such pilots become eligible to join AIPA:

   ·     any new members will be allocated to the Combined Small Airlines Work Group;

   ·     a Work Group will be established for their individual workplace if more than 50 pilots from the same workplace have joined AIPA within 12 months following the commencement of the employment of pilots by that entity; and

   ·     the new Work Group will have a Vice-Presidential position if the number of members from that workplace make up more than 15% of the total membership of AIPA within 2 years following the commencement of the employment of pilots by that entity.

1. I emphasise that proposed subrules 2(e) and 2(f) of Schedule C do not presume that the proposed changes to the eligibility rules will be approved by the Commission. The subrules are expressed in conditional terms, that is if the relevant pilots become eligible to join AIPA and if any such pilots join AIPA, then they will be allocated to a Work Group.

1. An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[2] This includes the right to determine how its members are grouped and represented on its governing committees. A relevant requirement of the Act is that the rules must not impose conditions, obligations or restrictions on members or applicants for membership, that are oppressive, unreasonable or unjust having regard to, among other things, Parliament’s intentions and the objects of the Act.[3] When considering whether conditions imposed on members and applicants for membership are oppressive, unreasonable or unjust, regard must be had to, among other things, the democratic functioning of the organisation and the participation of members in its affairs.[4] 

1. Currently AIPA’s rules provide for Work Groups of members by each employer, plus a Combined Small Airlines Work Group of members who are employed by employers with fewer than 50 AIPA members (current rules 28 and 29). Each Work Group is entitled to representation on AIPA’s Committee of Management (COM), and the number of representatives is calculated according to the size of the Work Group on “Election census date” (current rule 53). Election census date is a date in May in each election year (current rule 5). New Work Groups may be created and existing Work Groups may be abolished, depending on the number of members employed by the relevant employer on Election census date (current rule 28).

1. AIPA’s rules also provide for an Executive, the composition of which includes, among other offices, Vice-Presidential members representing Work Groups which have 15 per cent or more of AIPA’s total membership and one Vice-Presidential position representing other Work Groups (current rule 33).

1. If the alterations to the eligibility rules currently before the tribunal are approved by the Commission, pilots identified in paragraphs [9] and [10] above would be entitled to join AIPA. Under the current rules, if any such pilots were to join, they would not be separately represented on AIPA’s governing bodies until a Work Group is established on Election census date. The next Election census date is in May 2026 (current rule 5). In other words, if there were 50 or more members, they would not have formal means for participating in the affairs of the organisation as a separate Work Group until the conclusion of the 2026 election. This outcome may not meet the standards in the Act, particularly democratic functioning and participation by members in their organisation’s affairs.

1. Proposed subrule 2(e) of Schedule C ensures that if the proposed eligibility rules are approved and if pilots from National Jet Systems Pty Limited or Alliance Aviation join AIPA, they will immediately belong to a Work Group and have immediate representation on AIPA’s COM and Executive. It also ensures that representation levels on the COM and Executive will increase in accordance with increases in membership levels. This proposed subrule provides for participation in the affairs of AIPA for pilots employed by these airlines should the alterations to the eligibility rules be approved. In my view this proposed subrule does not impose oppressive, unreasonable or unjust conditions on members or applicants for membership.

1. Proposed subrule 2(f) of Schedule C is framed slightly differently. The trigger for allocating members to Work Groups in this subrule is when their employer commences employing pilots. It is unclear how this rule will operate if a relevant employer commences employing pilots prior to a determination by the Commission of the alterations to AIPA’s eligibility rules. Staff of the Commission have liaised with AIPA’s representative, seeking clarity regarding the operation of this subrule. These discussions are continuing. In these circumstances, I am prepared to defer consideration of subrule 2(f) of Schedule C to allow proper consideration of this proposed subrule.

Whether proposed subrule 2(f) of Schedule C is severable

1. In order to progress the remaining alterations, I must consider whether proposed sub-rule 2(f) of Schedule C is severable from the other alterations. In light of the principles set out by the majority in Food Preservers,[5] I must be satisfied that the other alterations operate independently of proposed subrule 2(f) and its severance will not affect the meaning and effect of the other alterations.

1. As noted above, most of the other alterations are made to renumber the subrules, clarify expression and correct typographical errors. The meaning of these alterations is not affected by subrule 2(f) of Schedule C; they operate independently of this proposed subrule.

1. Proposed subrules 2(e) and 2(f) of Schedule C go to similar matters; both make transitional arrangements for potential new members if AIPA’s eligibility rules are altered. However, they make provision for different groups of potential members. Whether or not proposed subrule 2(f) is certified, neither the meaning nor the effect of subrule 2(e) are affected; AIPA members employed by National Jet Systems Pty Limited or Alliance Aviation would be allocated to Work Groups irrespective of proposed subrule 2(f). In my view, these proposed subrules operate independently of each other.

1. In summary, severance of proposed subrule 2(f) of Schedule C will not affect the meaning and effect of the alterations to rule 52, Schedule C subrules 2(c), 2(d) and 2(e), and Schedule D. I am satisfied that proposed subrule 2(f) of Schedule C is severable from the remaining alterations.

Typographical errors

1. I note that proposed subrule 2(e) of Schedule C contains some typographical errors. These are not of such a magnitude to distort or make the meaning of the proposed subrule unclear. However, I recommend that AIPA consider correcting these errors when it next makes alterations to its rules.

1. In my opinion, the alterations to rule 52, Schedule C subrules 2(c), 2(d) and 2(e), and Schedule D comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Subsection 159(1) requires:

(1)  An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration: 

(a)complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

(b)is not otherwise contrary to law; and 

(c)has been made under the rules of the organisation

[2] Imlach v Daley (1985) 7 FCR 457 at 462

[3] Subsection 142(1)(c) of the Act provides that rules:

“must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust”

[4] Subsection 5(3) of the Act sets out the following standards for registered organisations:

(a)     ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)     encourage members to participate in the affairs of organisations to which they belong; and

(c)     encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)     provide for the democratic functioning and control of organisations; and

(e)     facilitate the registration of a diverse range of employer and employee organisations.

[5] Re Food Preservers’ Union of Australia (1988) 79 ALR 138 at 145

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